TMI Blog1999 (6) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... fiscation of land, plant, building and machinery belonging to the appellants. 2. The facts of the case in brief are that an intelligence was collected by the Central Excise Officers that M/s. Nova Udyog Ltd., Haldwani were engaged in clandestine clearance of M.S. Billets manufactured by them. The Officers visited the factory premises of the appellant on 3-9-1993 and physically verified the goods and resumed the record for scrutiny. Verification of the records resumed revealed that the appellants had clandestinely cleared 26312.840 M.T of M.S. Billets during the period 28-1-1993 to 12-10-1993. In follow up action, the goods receipts from different transporters showing the quantity of M.S. Billets consigned to different buyers were resumed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cannot be taken as correct; that any arrangement between the consigner and the transporter cannot be taken as evidence against the appellant. 3. The appellants also submitted that according to the statutory provisions of deemed Modvat credit, goods lying in a factory, Customs area or warehouse have been taken as clearly recognisable as being non-duty paid; that the goods lying at any other place have not been statutorily provided as clearly recognisable as non-duty paid. 4. The appellants were permitted to cross examine the seizing officer of the Deptt. and the transporter. All of the transporters reiterated the same words that none of their people go for delivery of the goods; that the consignee or their representative or consignor o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared by the appellants showing purchases from M/s. Nova Udyog Ltd. was not taken into consideration. Ld. Counsel submitted that out of 865.390 m.ts. of M.S. Billets alleged to have been received by the appellants, 84.48 m.ts. of M.S. Billets were actually received from M/s. Gupta Suppliers and M/s. Rakesh Industries and were taken into account and deemed credit was availed on them. Ld. Counsel submitted that the transporters in their cross examination stated after issuing G.R.s : original and duplicate copies were handed over to the consignee mentioned in GRs or to someone else or on cash payment. He submitted that Central Excise Officers on cross examination stated that no documents had been recovered either from the premises of the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in the instant case M/s. Nova Udyog Ltd. were clandestinely clearing M.S. Billets. He submits that in persuance of information searches were conducted in the premises of dealers, transporters and certain manufacturers, goods receipts were recovered from the transporters. He submitted that there were three dealers and eight transporters in the instant case. The goods after being manufactured by M/s. Nova Udyog Ltd. were cleared through the three dealers and from the dealers premises, the goods were transported by eight transporters to the premises of the appellants. He submits that the transactions being clandestine were cash transactions that records were not maintained by the appellants. He submitted that all the eight transporters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d into Flats, rounds, bars and squares and were clandestinely removed the second issue is about inadmissible Modvat credit of Rs. 77,721.60 on 84.48 m.ts. of billets. 11. In so far as first issue is concerned, we find that the entire case is built on the goods receipts and the cash transactions for which the amount was deposited in the account of dealers in the bank. We have also seen the statement of the transporters as well as the results of the cross examination of the transporters and seizing officers. The goods receipt no doubt mention the name of the appellant as a consignee but there is no corresponding endorsement on the goods receipt that the goods were actually received by the consignee. In cross-examination some of the transpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd investigations were conducted by the Department and investigations revealed that these billets were manufactured by M/s. Nova Udyog Ltd. and were non-duty paid. Since non-duty paid character of the M.S. Billets in the instant case was established, we, therefore, hold that deemed Modvat credit was wrongly taken by the appellants. In this view of the matter, the appeal on this count falls. 13. In so far as imposition of penalty is concerned we find that the appellants had wrongly taken Deemed Modvat credit knowing fully that no duty was paid on these goods, therefore, penalty is imposable. However, looking to the facts of the case as held above, we find that the penalty of Rs. 3,50,000/- is too harsh, the same is reduced to Rs. 25,000/-. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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